In the 1952 “Steel Seizure” case, nearly every Supreme Court Justice weighed in on the state of Executive power. Unionized steel workers realized they had unprecedented leverage to bring the country to its knees and scheduled a strike in the middle of the Korean war. President Truman realized the invasion could not continue without steel, so he quickly nationalized the steel mills to keep production running.
The Supreme Court smacked the President for his decision when Justice Black determined that the President cannot act outside of his “aggregate” Article II powers (“the executive Power shall be vested in a President”; that “he shall take Care that the Laws be faithfully executed”; and that he “shall be Commander in Chief of the Army and Navy of the United States”) absent explicit authority from either the Constitution or a Congressional grant of power.
Youngstown is a brilliant and beautiful case for a number of reasons, but at its core it’s a discussion on what the “separation of powers” means for our republic. Perhaps the powers are better “shared” than “separated,” but two branches have declared in not-too-distant past that the President may do many things, but he should not be able to decide when and how to seize the factors of production.
Is it just me who’s getting major deja vu from this bill that would allow President Obama to take over the Internet during “Emergencies”?
Internet companies and civil liberties groups were alarmed this spring when a U.S. Senate bill proposed handing the White House the power to disconnect private-sector computers from the Internet.
They’re not much happier about a revised version that aides to Sen. Jay Rockefeller, a West Virginia Democrat, have spent months drafting behind closed doors. CNET News has obtained a copy of the 55-page draft of S.773 (excerpt), which still appears to permit the president to seize temporary control of private-sector networks during a so-called cybersecurity emergency.
The new version would allow the president to “declare a cybersecurity emergency” relating to “non-governmental” computer networks and do what’s necessary to respond to the threat. Other sections of the proposal include a federal certification program for “cybersecurity professionals,” and a requirement that certain computer systems and networks in the private sector be managed by people who have been awarded that license.
The scary part is the President’s ability to determine when the “Emergency” begins and ends. Privacy issues abound, but the scariest part of this bill is that we’re putting the “decider” power and the rewards in the same hands. If I get to decide when to suspend private property law and I get to take that property when I decide it’s appropriate, won’t I be more prone to find the sky is falling?
It’s not a partisan issue. Yes, I prefer a president who comes down hard on terrorists who want to blow us up, NOT on people who “spread disinformation” about White House pet projects. All that being said, we’re asking for a lot of major emergencies. Not only has the WH decided to micromanage information spreading on the web; we’re looking at potential H1N1 hypertransmission (that elicited executive classification as “emergency” in April 2009), and we keep baiting the bullies of the Middle East in ways I wouldn’t bait a bully.
Do we really want to nationalize the mills? 1952 was the time for steel, but now we’re working with information. Three Justices, including the Chief Justice, dissented in Youngstown — taking away this presidential privilege was obviously a controversial move.
Executive power is a slippery beast, and more so in times when “emergency” stays so close to the surface. With a united, non-separated government with a complacent media that refuses to exercise its external spank, are we really ready to hand over the last key to the city?